Every landlord should take mold seriously. A top environmental hazard, mold thrives in warm, damp places, and often grows quickly in basements, attics, and other parts of buildings with poor ventilation and humidity problems. Although mold is often associated with buildings in wet climates, no rental property is immune from a mold outbreak, as one can occur following an unattended spill, faulty plumbing, or even a misdirected lawn sprinkler.
If you own or manage a rental property in Massachusetts, a mold problem could present you with costly cleanup and repair bills as well as lawsuits from tenants claiming that the mold made them ill.
Read on to learn about landlord responsibilities and tenant rights when it comes to mold in Massachusetts rental properties.
Courts in Massachusetts have recognized two common legal self-help strategies that some tenants choose to pursue following a mold outbreak in their apartment or rental home. The first, known as "rent withholding," is when tenants decide to stop paying rent, claiming the mold has made their apartment uninhabitable. (Note that regardless of what may appear in a written lease with tenants, landlords in Massachusetts are bound by the “implied warranty of habitability,” a legal doctrine that requires providing tenants with apartments in livable condition.) The second strategy, known as "repair and deduct," involves tenants taking care of mold cleanup on their own and then subtracting the cost from their rent.
See Massachusetts Tenant Rights to Withhold Rent or 'Repair and Deduct' for more information about these strategies, including their limitations.
There is currently no federal law covering a landlord's responsibilities when it comes to mold. Also, Massachusetts doesn’t have any laws that specifically address a landlord’s duties or liability when it comes to mold prevention and remediation.
However, tenants who believe they have been harmed by the presence of high concentrations of mold in their apartment can try to recover damages from their landlord in court to compensate them for their loss. If a judge or jury agrees that the landlord negligently created a mold problem or allowed one to continue at a property, the landlord could be on the hook for any harm.
For example, the resident of a condominium in Gloucester, Massachusetts, sued the condominium association after she was hospitalized within weeks of moving into her one-bedroom apartment on account of respiratory difficulty, skin rashes, and other health issues. The resident claimed that mold was to blame for her illness, and that the association failed to remove mold and correct a serious moisture issue in the building. After an eight-year court battle, a jury awarded the resident $549,326 (including $264,326 in interest). (Stevens v. Pirates Lane Condominium Trust, No. ESCV199600403, 2003 WL 23356169 (Mass. Super. Ct. 2003).) While this case concerns a condo, similar principles would probably apply in a rental setting.
Massachusetts doesn't have any statutes or regulations that require landlords to disclose high concentrations of mold in rental properties to prospective tenants or buyers. Also, while federal law requires disclosures about lead paint, it doesn't impose a similar duty on landlords when it comes to mold.
Aside from any affirmative disclosure requirement, however, if you decide to list a property for sale, you should be ready with responses to questions potential buyers might ask about plumbing, humidity, and ventilation issues in your building.
To learn more about landlord disclosure requirements in Massachusetts, check out Massachusetts Required Landlord Disclosures.
If you believe a departing tenant caused a mold problem (beyond ordinary wear and tear) in an apartment or rental unit, you may wish to deduct the cost of cleaning from that tenant's security deposit. Massachusetts law allows landlords to do this, provided they give the tenant a written explanation of the mold damage costs (along with any other claimed damages) within 30 days of the tenant's lease termination. If this amount is less than the security deposit, you must return the remainder of the deposit to the tenant along with the written documentation of damage deductions (Mass. Gen. Laws Ann. ch. 186, § 15B).
For more information about security deposits in Massachusetts, check out Massachusetts Security Deposit Limits and Deadlines.
Because so much is at stake, it's important to try to prevent a mold problem from growing in your rental property in the first place, as well as take prompt, effective action to remove excess mold that you discover. For more advice on this, see Mold and Your Rental Property: A Landlord's Prevention and Liability Guide, by Ron Leshnower (Nolo).